On Thursday 23 May 2019, I attended at the Sydney University Law School Beyond Punishment Seminar Series: Aboriginal Women in the Criminal Justice Network. The speakers discussed data on Aboriginal and Torres Strait Islander women in prison, and programs to support them in the state of New South Wales (NSW). ‘Aboriginal’ women in the context of the talks and the discussion below also encompasses Torres Strait Islander women.*
Before I tell you more about the talks, I’ll set the scene, looking solely at the adult prison context affecting Aboriginal women being targeted by the criminal justice system.
Over-incarceration is an issue best examined through a lens of intersectionality, a term originally exploring the limitations of dominant definitions of discrimination under industrial law (Crenshaw 1989: 150). Legal outcomes of Aboriginal women are simultaneously impacted by race, gender, class and other systemic inequalities. Lack of legal resources available to Aboriginal women to navigate the legal system is born of concurrent racial justice and gender inequalities. Economic disadvantage, poor access to therapeutic and other health services, and housing insecurity are preconditions of offending; these are class and racial justice issues. Sexual violence and poverty of Aboriginal mothers are typical of imprisoned women’s backgrounds at a rate that is much higher than male prisoners (Stathopoulos and Quadara 2014). Again, these are both racial and gendered issues, which are interconnected with colonial violence and intergenerational trauma.
I am writing on 26 May; National Sorry Day. This day commemorates the truth-telling of the Bringing Them Home report, the documentation of the Stolen Generations. Around 100,000 Aboriginal and Torres Strait Islander children were forcibly taken from their families under our racist social policy. The first institution built to ‘civilise’ Aboriginal children through the use of violence was in Parramatta, New South Wales (Marlow 2016). From 1910 to 1970, across the nation, Aboriginal children were forced to forget their culture, language and spirituality. They were placed into neglect by Christian-run missions and into White foster care (AHRC 1997). Today, the state continues to forcibly remove Aboriginal children from their families at four times the rate as non-Indigenous kids (Zevallos 2017). New forced adoption laws in New South Wales mean children placed in care will be forcibly adopted (Zevallos 2019). For Aboriginal women in prison, this will almost certainly mean losing legal rights to see their children. Fracturing families through the imprisonment of mothers is another way in which colonial violence continues in the present-day.
Today marks the 11th anniversary of former Prime Minister Kevin Rudd’s Apology to the Stolen Generations. From 1910 to 1970, up to one third of all Aboriginal and Torres Strait Islander children (100,000 children) were forcibly removed from their families and sent away from their communities. They were classified according to their skin colour and put into Christian missionaries where they suffered abuse and neglect, or they were placed with White foster families who did not understand their needs. These children were forced to forget their language, culture and spirituality, and in many cases they were not told of their Indigenous heritage.
The Bringing Them Home report of 1997 gathered evidence of the impact this cultural genocide had on Indigenous Australians, showing that it led to intergenerational trauma, poor health, and socio-economic issues. The report made 54 important recommendations to end the cycle of violence against Indigenous Australians.
Twenty years later, Indigenous children are being removed from their families up to four times the rate.
Why is swearing on TV more offensive than graphic depictions of violence?
In December 2011, The then-Australian Minister for Communications, Senator Stephen Conroy, created a media controversy when he swore during a live address on the national public broadcaster, the ABC. This live gaff had me thinking about swearing, the power of ‘bad words’ and the regulatory bodies that set and enforce the standards for television programming. It’s popped back into my mind as I’ve been thinking and reading a lot about power dynamics and the changes in linguistic practices.
Speaking to the National Press Club about the proposed tax for the National Broadband Network, Conroy said:
“If a tax goes up, God, that is sovereign risk, but if a tax goes down, its fucking fantastic. Excuse me – that is fantastic.”
This comment went to air during 12:30 pm and 1:30 pm. As Aidan Wilson (2011) points out, Conroy’s offence was not simply using a ‘vulgar’ word, but also that his address was followed by the ABC’s afternoon children’s shows.
The language guidelines for TV shows can be confusing. Why are some words allowed in some contexts and not in others? It’s not simply a timing issue – some swear words are only allowed to escape the mouths of thespians late at night but not during the day. This makes sense if you’re trying to protect children from being exposed to certain swear words.
The again, some words are generally considered to be more offensive than others – but the social norms on this are not clearly articulated by law.
I attended Dialogue of the Titans with Prof Megan Davis and former High Court Justice Michael Kirby. Hosted by the University of New South Wales Pro Vice Chancellor Indigenous. “A dialogue between two extraordinary human rights defenders on holding a United Nations Human Rights Mandate.” An excellent event looking at the work of the United Nations as well as the practicalities (terrible travel conditions for all volunteers, which especially restrict members from developing nations).
There was also discussion of why Australia does not have a bill of rights (terrible). Plus why it’s a problem that Australia rejected the Uluru Statement, the outcome of consultation led by, and with, Aboriginal and Torres Strait Islander people around Australia, which recommended a voice to parliament. Most nations with Indigenous populations have a version of this mechanism that ensures Indigenous people can comment on laws before they’re passed.
This week, on 11 May 2017, a bill two-years-in-the-making to decriminalise abortion in the state of New South Wales, Australia, was defeated 14 to 25, meaning abortion remains a crime under the Criminal Act. Greens MP and Spokesperson for the Status of Women, Dr Mehreen Faruqi MLC, who led the campaign to decriminalise said: “This bill was not about promoting or not promoting abortion. It was about choice.”
Another separate bill to establish 150 metre safe zones to protect abortion clinics has been introduced by Labor MP Penny Sharpe. This bill works to eliminate harassment and intimidation by anti-choice lobbyists who film and degrade women who walk into clinics.
This law has been in place since the 1970s, but stems back to 1900. Counter to national myths of our egalitarianism, abortion laws unearth how gender inequality is maintained by White, conservative Christian patriarchal ideology that seeks to control women’s autonomy. Sociological studies show how medical professionals have long been at the vanguard of change, by shifting understandings of abortion from moral arguments, to a medical choice.
Christian lobby groups, who hold strong political power, push back against medical and community views, using emotional imagery to influence abortion laws. This has proven effective over time, and continues to hold back progress in New South Wales (and Queensland, another conservative stronghold). Despite this recent set-back, momentum towards progressive change continues. A better sociological understanding of religiously conservative ideology and tactics may hold the key towards the next legal breakthrough.
The tragic and preventable injustices suffered by Indigenous Australian woman Ms Dhu deserves urgent international attention.
Earlier this week, the West Australian Coroner found that the death in custody of 22-year old Indigenous woman Ms Dhu was preventable. She was imprisoned for petty fines that White Australians are not jailed for, let alone ultimately die over. The police abuse, which included denying Ms Dhu medical attention as she lay dying and dragging her body “like a dead kangaroo,” was found to be cruel and unprofessional.
Ms Dhu died of respiratory complications due to infection. Ms Dhu was a victim of domestic violence, and like many Indigenous Australians, did not have adequate access to services and support for this trauma and her ongoing health issues.
Trigger warning on the footage: graphic violence. Footage contains images of a deceased Indigenous person.
Stanford law Professors Daniel Ho and Mark Kelman have conducted research showing that larger classes in law schools increase gender inequality. The study has relevance to STEM as the findings support other research about teaching in physics.
The study, published in the Journal of Legal Studies, included almost 16,000 grades given to around 1,900 students. The researchers find that pedagogy (teaching philosophy and teacher-student practice) matters to gender outcomes. The authors conclude that smaller classes where teachers provide more feedback reduce gender differences in grade scores. The researchers found that women outperformed men in small, interactive classes focused on practical exercises. The researchers note that similar results have been found in interactive physics courses.
Professor Kelman argues that the finds go against the “common sense” presumption that gender performance are “fixed”:
“Some naïve reactions are that if women get poorer grades at law school, women must be less capable… I think it’s surprising to many – and perhaps a confirmation of a more optimistic view that I have – that much of the inequality we observe in the world is mutable, and that the structures that we sometimes take for granted may work to the advantage of some and the disadvantage of others.”
In June 2013, I wrote about Norrie, a transgender woman from New South Wales (pictured above), who had successfully petitioned The New South Wales Court of Appeal to be given the right not to list her gender as either male or female.
Predictably, this New South Wales decision had been appealed and it went to the High Court. This morning, they ruled that New South Wales law can indeed recognise non-specific genders other than male or female.
Since the 1990s Australian law has recognised sexual persecution as grounds for refugee asylum. Still, applicants are forced to go through a protracted process of proving their “gayness.” This excellent video features University of Sydney researcher and activist Senthorun Raj telling the story of Ravi, a Bangladeshi asylum seeker, who was forced not just to establish his sexuality, but to defend his commitment to his queerness. Ravi’s problem was that he was not “visibly” gay in the way the law expected. Yet refuge law on persecution is not simply about looks or physical persecution. Continue reading Gay Enough: Human Rights of Gay Refugees
The Hon Michael Kirby speaks about the need for Australia to contribute towards lesbian, gay, bisexual, transexual, queer and intersex (LGBTQI) rights on a global scale. Kirby is now working with The Kaleidoscope Trust, a not-for-profit international organisation fighting against LGBTQI human rights abuses. Kirby will contribute to law reform on LGBTQI issues in the Asia-Pacific.
Commonwealth nations have some of the most oppressive and homophobic laws in the world. Kirby argues that Australia must be a leader in our region by improving our laws and by taking an active role to challenge injustice around the world.
Kirby is the former Justice of the High Court of Australia (1996 to 2009). He publicly identified himself as gay in 1999 and has campaigned actively about the human rights of LGBTQI Australians. He was awarded a human rights medal in 1991. In May this year, he was appointed to lead an United Nations inquiry into human rights abuses in North Korea.